HKSAR v HUI HUNG SHING

DCCC 1033/2008
DCCC 1113/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1033 & 1113 OF 2008

____________

REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210 (charge 1); one charge of robbery, contrary to section 10 of the Theft Ordinance (charge 3); and two charges of assault with intent to rob, contrary to section 10 of the Theft Ordinance (charges 5 & 6).

2.  In summary the victim of the three robbery charges Mr Sin Wei-jung is a person known to the defendant for over 10 years.  In August this year when Mr Sin was preparing to open the noodle shop where he worked, he saw the defendant enter the shop and take about $200 worth of coins from a metal container placed on the cashier desk (charge 1).

3.  In October whilst working alone in the noodle shop the defendant approached and asked Mr Sin to lend him some money.  Mr Sin refused whereupon the defendant pushed him to the ground and took $700 from his wallet and then fled (charge 3).

4.  The defendant was arrested and placed on court bail on the 20th October 2008.  On the 11th November the defendant suddenly approached Mr Sin, grabbed his right arm forcefully and demanded that Mr Sin give him some money.  Mr Sin shouted for help as a result of which the defendant fled (charge 5).  Two days later the defendant again approached Mr Sin, grabbed his neck and demanded $200 (charge 6).  The defendant was re-arrested the next day.

Burglary

5.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is two years and six months imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 20). 

6.  When arrested the defendant said he went to the premises to look for Mr Sin and that when he could not find him he took the money and fled.  I am prepared to accept this was therefore not a planned burglary and is perhaps more akin to an opportune theft.  The defendant however is not a first offender having nine convictions for dishonesty, including four for burglary.  In all the circumstances I am satisfied the proper starting point after trial is one year and six months imprisonment.  

Robbery

7.  The starting point for unarmed robbery is generally no more than four years imprisonment (for example see HKSAR v LAM Ka-hung     CACC 294/2003).  Each case must however be decided upon its own particular facts and circumstances. 

8.  Mr Lam submitted Mr Sin had borrowed money from the defendant and still owed him $3000.  When Mr Sin refused to pay the defendant committed the robbery.  This being contrary to what the defendant told the police I rejected that the defendant was owed money.  Having taken further instructions Mr Lam confirmed that the defendant withdrew this part of his mitigation.

9.  I do accept that no weapon was used and no injury was caused to  Mr Sin.  I am satisfied the proper starting point after trial is one of two years imprisonment. 

Assault with intent to rob

10. Both these offences were committed whilst the defendant was on bail.  The commission of offences on bail is an aggravating feature of sentence.  Again I accept no weapon was used or injury caused to Mr Sin.  I am satisfied the proper starting point after trial is one of two years and six months imprisonment on both charges.

11. In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Lam, including that the offences were committed to obtain money to pay for the medical expenses of his mother, who suffers from mental illness.

12. I note also that through his mother the defendant offers to make restitution.  Whilst payment of restitution is a matter of mitigation this carries little weight being made at the last moment and not actually being paid by the defendant himself.  If indeed the offences were committed to pay the mother’s medical expenses then this shows she is in need of money and therefore should not be the one who pays for the defendant. 

13. Whilst the offences all have a link they are separate and distinct for which consecutive sentences are appropriate, in particular the offences committed on bail.  I am satisfied an overall starting point of four years and six months imprisonment is appropriate.

14. Giving the defendant full credit for his pleas of guilty he is sentenced as follows:

Charge 1 - 12 months imprisonment;

Charge 3 - 1 year and 4 months imprisonment consecutive to charge 1;

Charges 5 & 6 - 1 year and 8 months imprisonment concurrent to each other with 8 months consecutive to charges 1 & 3 and 12 months concurrent;

I am satisfied a total sentence of 3 years imprisonment properly reflects the defendant’s criminality on these four charges.